This is not a good panel for the government. Elrod is a rising star conservative judge. Smith, for whom Tom Cotton clerked, is also conservative.

Friday’s hearing will not produce a ruling on the merits of Judge Hanen’s preliminary injunction, only on whether the injunction should be stayed until the merits are decided. The merits, though, are intertwined with the stay issue.

The big question is whether the same panel will decide the merits. I don’t see why not. There is a substantial overlap between the two cases, such that it would waste judicial resources to have a different panel deal with the merits.

However, the court has not designated a panel for the merits case, so we shall see.